HL Deb 26 April 1860 vol 158 cc126-34

Order of the Day for the House to be put into Committee read.

Moved, that the House do now resolve itself into a Committee on the said Bill.


said, that the principle of the Bill was to give the Judge Ordinary power to act alone in cases in which he was now assisted by other Judges, and to leave to his discretion to call in other Judges to sit with him or not. It was impossible that his decision without assistance in cases of dissolution of marriage would have the same weight as a decision of the full Court; and one result of giving the Judge Ordinary sole jurisdiction in such cases would be that parties would be dissatisfied with his decisions and would appeal to that House, and thus bring back to their Lordships that very jurisdiction which it was the object of the previous Act almost wholly to extinguish. When he stated his objections on a former occasion it was said that there were instances in which a single Judge had already power to decide most important questions, and yet gave universal satisfaction. Criminal cases were referred to, and also the instance of the Lord Chancellor sitting in equity. If, however, there was one thing more than another that had for many years past been a ground of complaint, it was the leaving it within the power of a single Judge to adjudicate upon matters of great importance. In the Courts of Queen's Bench, Common Pleas, and Exchequer they had four Judges sitting to determine questions of inferior interest to those of the dissolution or the nullity of marriage: and it had been found necessary, with a view to the due administration of justice, to appoint two Judges of Appeal to assist with their advice, and, if necessary, control the Lord Chancellor himself, the highest law officer of the country. It had also proved inconvenient that the appellate functions of that House should be exercised by two law Lords sitting alone, because, if they happened to differ in opinion, the decision of the Court below was practically affirmed by one of them. They were, however, now asked to give to a single Judge the power they re- fused the other day, except to a full Court, composed of the greatest legal authorities in the kingdom. A Judge of assize hearing criminal eases, if he experienced any difficulty, walked into another court and consulted his brother Judge; and, if he went wrong, there was a Court of Criminal appeal or the Home Office to grant relief. It was impossible to speak too highly of the Judge-Ordinary of the Divorce Court; but was it fair to throw upon him individually all the great labour which they had so lately thought required a full Court, with the highest Judges in the land, properly to dispose of it? If the Judge Ordinary, sitting alone, decided questions of the dissolution or the nullity of marriage, his judgments would frequently be appealed against. If they then happened to be reversed, it was impossible to exaggerate the dissatisfaction and mischief that would ensue. He had been taunted with objecting to this Bill with out offering any alternative proposal of his own. As an individual Peer, he had a perfect right to criticise the measures introduced by the Government, although he might not have any counter-measure to submit. But he had in this case a proposition to make to their Lordships, and it was one of the simplest nature. It was that there should be one other Judge always sitting with the Judge-Ordinary, to deal with questions of the dissolution and the nullity of marriage. It could hardly be objected to this suggestion that the Judges had no time to attend to this duty, especially when it was remembered that it was now sought to transfer a largo equitable jurisdiction to the Common Law Courts, the effect of which would be to double the work of those tribunals. The existing law cast upon the fifteen common law Judges the duty of attending the Divorce Court in such cases; and, if they could not spare one of their number for this purpose, why was this particular portion of the functions vested in them, any more than in any other, to be cut off from the rest, and thrown upon some one else? If the common law Judges were not competent to discharge the duties imposed upon them, they ought to have further aid. But certainly they had no higher or more important duty cast upon them by the law than the jurisdiction now in question. If the matter could not otherwise be arranged with the present staff, he would propose that the Common Law Courts should sit with three Judges instead of four. Four was the worst of all Courts, because, in case of a difference of opinion, there being two on one side and two on the other, no decision could be come to at all. At any rate it was better that the Common Law Courts should sit with three Judges, than that the Judge-Ordinary of the Divorce Court should sit to decide Cases alone.


said, he could not help thinking that his noble and learned Friend had fallen into a considerable irregularity. That was his opinion, and he believed it was the opinion of their Lordships. On the second reading of the Bill the question was whether the Judge-Ordinary should be trusted to sit alone except in cases where he might think it expedient to call in the assistance of a brother Judge from the Common Law Courts. That was opposed by his noble and learned Friend in a very long, and, therefore, able speech; but that speech had been answered by his noble and learned Friend (Lord Lyndhurst), who had been present this evening, but retired, not supposing that the discussion would be revived. That speech, even from his noble and learned Friend, excited unusual admiration and satisfaction. Except his noble and learned Friend (Lord St. Leonards), he believed there was not a single one of their Lordships who was not convinced by it. Indeed, he rather thought his noble and learned Friend himself (Lord St. Leonards) had been convinced, for after that speech was delivered he retired from the House. The question was not whether the Judge-Ordinary should sit alone, but whether a considerable portion of the business in the Divorce Court might not be fairly intrusted to him, he having at all times the power of calling in the assistance of another Judge; and he did not think it would become him to try to repeat the arguments of his noble and learned Friend (Lord Lyndhurst) in answer to the statements which had been reiterated. While he was coming into the House he received a letter from the Chief Justice of England, written with his usual ability, and which he thought would remove any doubt on this subject, even from the mind of his noble and learned Friend. The letter was in these words:—

"April 24, 1860.

"My Lord,—Understanding that the Bill introduced by your Lordship for remodelling the Divorce Court is about to be discussed in the House of Lords, it occurs to me that it may not be inexpedient that your Lordship should be pos- sessed of the view taken by the Judges of this mutter, after a practical experience of two years. I trust, therefore, I am not stepping beyond my province in conveying to your Lordship what I know to be the unanimous opinion of the Judges"—


rose to order. It was not regular to read a letter on the subject of a Bill before the House.


apprehended that it was perfectly regular. His noble and learned Friend the other evening referred to the opinion of the equity Judges on the Bill then under discussion. This was not a private letter, but written for the express purpose of being communicated to the House.


thought that, in that case, the noble and learned Lord ought to have moved for its production. He could not read a letter unless he laid it before the House.


believed the rule to be that such a letter to be read must either have been laid before the House, or his noble and learned Friend must be prepared to lay it before the House.


was prepared to lay the lettter before the House the moment he had read it.


apprehended that the letter must be laid on the table by command of Her Majesty before it could regularly be read.


said, the letter was written to give information and assistance of great importance to that House.


believed the constant practice was to read letters from individuals. Was it fit, then, that because a letter possessed great authority as coming from a Judge, and conveyed important information, it should not be read?


did not think it regular to read the opinion of one of Her Majesty's Judges as to the Bill under discussion.


was not aware of any similar instance of such a letter being read, either in that or the other House of Parliament, with reference to a Bill under discussion.


remembered a letter being read in the other House from Sir George Clerk, Under Secretary of the India Board, stating the course taken by Government in regard to a particular measure.


very much doubted whether the letter alluded to by the noble Earl referred at all to the policy of the course taken by the Government.

After a few words from LORD WENSLEYDALE,


said, he should, if necessary, take the sense of the House on the Question whether the letter should be read ["No, no."] The noble and learned Lord then proceeded to read the letter:— My Lord,—Understanding that the Bill introduced by your Lordship for remodelling the Divorce Court— when


rose and said, he thought the noble and learned Lord had read quite enough to raise the question. When a person occupying the position of a Judge of the land, whom we may call upon to aid us by his advice if we please, desires of his own motion that his opinion should be laid before the House, with the view of guiding its decision with respect to a Bill which is under its consideration, your Lordships ought, I think, to be cautious how you allow such a communication to be read as a question of right. Information such as that which the letter contains may be very useful, but I contend that we ought not so far to accede to the wish of the noble and learned Lord in the matter as to allow him to set a precedent of this nature.


If the noble and learned Lord were about to read a letter from any ordinary person—a person, for instance, not conversant with the subject before us—he might have adopted the course which he is about to take without comment. It seems, however, that because the letter is one which contains some valuable information we are to be precluded from having it submitted to our notice. For my own part I cannot see why it should be expedient that we should have withheld from us the expression of an opinion which may be calculated to guide us in coming to a satisfactory decision with respect to an important Bill.


then read the letter as follows:—

"April 24, 1860.

"My Lord—Understanding that the Bill introduced by your Lordship for remodelling the Divorce Court is about to be discussed in the House of Lords, it occurs to me that it may not be inexpedient that your Lordship should be possessed of the view taken by the Judges of this matter after a practical experience of two years.

"I trust, therefore, I am not stepping beyond my province in conveying to your Lordship what I know to be the unanimous opinion of the Judges, that the attendance of the common law Judges in the Divorce Court, and their consequent withdrawal from the Courts to which they properly belong, cannot be continued without great inconvenience and detriment to the judicial department of the public service; while, on the other hand, no corresponding advantage results to the constitution of the Divorce Court itself.

"The fact is, that at the present time the judicial establishment in the Superior Courts of common law is not more than barely adequate to the discharge of those duties which were incidental to the judicial office before this new duty was imposed on them.

"For, though it is true that the County Courts have to a considerable extent relieved the Superior Courts of a large extent of the lighter and less important cases, yet the amount of business in the latter never was heavier than at the present moment. The increase of population and of commercial and manufacturing activity, the multiplication of inventions and patents, the right recently conferred on the representatives of deceased persons, where loss of life has resulted from negligence, to bring actions for compensation, the facility afforded by railways for bringing causes to London for trial, with other circumstances unnecessary to detail, produce an amount of important business which presses heavily on the Courts; more especially as the modern changes in our procedure (I allude more particularly to the examination of parties, which leads to the calling of witnesses for the defendant in almost every case, and to the allowing of second speeches to counsel for defendants), while tending materially to promote justice, have, on the other hand, a necessary tendency to prolong proceedings in Court and to occupy time. Besides this, new duties have been thrown on the Courts; for instance, on the Court of Queen's Bench, by the power of appeal from the decision of magistrates in petty sessions, given by the Act of the 20 & 21 Vict., which, added to the former appeals from quarter sessions, produces an amount of Crown business which occupies the Court two days a week in every term; on the Court of Common Pleas by the reference to that Court of questions arising on the Railway and Canal Traffic Acts, and of appeals from the decisions of Revising Barristers.

"The effect of the whole is that the utmost diligence and activity of the Judges is no more than adequate to prevent the accumulation of arrears to a serious and mischievous extent.

"In term time it is, as your Lordship is aware, absolutely necessary that Nisi Prius sittings should be constantly going on. One Judge in each Court being thus employed, four would be left for the sittings in Banco, were it not that during one-half of the day another Judge is required to attend at chambers, whereby the number is reduced to three. I trust your Lordship will concur with me in thinking that the number of the Judges for sittings in Banco ought not to be reduced below the ancient and accustomed number. It is the unanimity of so many as four Judges, or in the event of difference the proportion of the majority, which has given so much authority to the decisions of these Courts. It is, no doubt, impossible to prevent the number from being at times reduced to three by the incidents to which I have referred; but when it is considered that the Court on applications for new trials is practically a Court of Appeal from the ruling of single Judges, or from the decisions of juries, that it is often called upon to decide difficult and complicated questions of law, and to settle the construction of important Acts of Parliament, I feel assured I shall have the sanction of your Lordship's opinion in saying that the number of the sitting Judges of each Court ought not to be intentionally reduced below three. Yet the withdrawal of one of the Judges for the purposes of the Divorce Court has necessarily the effect of reducing the number to two during a portion of every sitting, and, in case of absence by ill-health or other casualty, would have the effect of reducing the Court to a single Judge, or, as the alternative, of preventing the sittings at Nisi Prius or attendance at chambers.

"Out of term the inconvenience is still greater. The state of the cause-lists necessitates, as your Lordship knows, the constant sitting of the two Courts. Attendance at chambers continues to be as necessary as in term. post-terminal sittings in Banco are indispensable to dispose of the arrears of term business, and at this period occur the sittings of the Court of Error in the Exchequer Chamber, in which the presence of as many Judges as possible is most desirable, and less than six ought not to be dispensed with. Any one of these important Courts may be suspended by the withdrawal of two Judges (or even of a single one) from their proper and primary duties.

"I have omitted to advert to the sittings of the Central Criminal Court, as well as to the recently established Court of Criminal Appeal, which constitute an additional drain on the strength of the judicial establishment.

"These explanations, of which, fortunately, no one can be better qualified to form a correct estimate than your Lordship, will, I conceive, fully bear out the opinion expressed by the Judges as the result of their practical experience.

"Equally strong and general is the opinion that the expenditure of judicial force involved in the attendance of the Judges in the Divorce Court is, for the most part, pure waste, uncompensated by any advantage to the administration of justice in that Court. The great majority of cases dealt with in the Court of Divorce are either undefended, or the facts are too clear to admit of doubt, or at all events the question to be decided is one of fact alone, determinable by the evidence, and with which a Judge or a Judge and Jury are perfectly competent to deal, just as the latter would before have been in an action for criminal conversation, or a Judge would have been in a suit for divorce in the Ecclesiastical Court. Collusion, the apprehension of which excites so much alarm in these cases, occurs, I am satisfied, much less frequently than seems to be supposed. Where it does, the sagacity and acuteness of one competent Judge, especially of so eminently distinguished and able a Judge as Sir Cresswell Cresswell, may well be expected to detect and frustrate it. At the same time, as cases will no doubt at times occur involving more than ordinary difficulty, and in which the Judge-Ordinary may desire assistance, if, in such cases, no other means can be resorted to for strengthening the Court than the having recourse to the Judges, of course the latter must do their utmost to render the required assistance, so far as this can be made consistent with the exigencies of their more immediate duties. What they at present object to, and strongly feel, is the idle waste of their time, imperatively called for elsewhere, in sitting to hear causes in which there is neither necessity nor occasion for their taking part at all. At all events, they confidently trust that the Legislature will relieve them from attendance on the Divorce Court, except where the Judge-Ordinary requires their aid, or where appeals are brought against his decisions.

"I have the honour to be, my Lord,

"Your obedient and faithful servant,


"The Right Hon. the Lord Chancellor."

Motion agreed to.

House in Committee accordingly.

Clauses 1, 2, 3, 4, 5, and 6 agreed to.

LORD CRANWORTH moved the insertion of the following clause, which embodied two Amendments of which his Lordship and Lord WENSLEYDALE had severally given notice. Every Decree for a Divorce shall in the first Instance be a Decree nisi, not to be made absolute till after the Expiration of such Time, not less than Three Months from the pronouncing thereof, as the Court shall by General or Special Order from Time to Time direct; and during that Period any Person shall be at liberty, in such Manner as the Court shall by General or Special Order in that behalf from Time to Time direct, to show Cause why the said Decree should not be made absolute by reason of the same having been obtained by Collusion or by reason I of material Facts not brought before the Court; and, on Cause being so shown, the Court shall deal with the Case by making the Decree absolute, or by reversing the Decree nisi, or by requiring further Inquiry, or otherwise as Justice may require; and at any Time during the Progress of the Cause or before the Decree is made absolute any Person may give Information to Her Majesty's Proctor of any Matter material to the due Decision of the Case, who may thereupon take such Steps as he may deem necessary or expedient; and if from any such Information or otherwise the said Proctor shall suspect that any Parties to the Suit are or have been acting in collusion for the Purpose of obtaining a Divorce contrary to the Justice of the Case he may, by Leave of the Court, intervene in the Suit, alleging such Case of Collusion, and retain Counsel and subpoena Witnesses to prove it; and it shall be lawful for the Court to order the Costs of such Counsel and Witnesses, and otherwise arising from such Intervention, to be paid by the Parties or such of them as it shall fee fit, including a Wife if she have separate Property; and in case the said Proctor shall not thereby be fully satisfied his reasonable Costs, he shall be entitled to charge and be reimbursed the Difference as Part of the Expense of his Office.


approved the clause; he had in the Bill of last year, given power to the Attorney General to obtain such further evidence in cases in which collusion was suspected. The delay was by no means to be complained of. In France, the decree in such cases was never pronounced till twelve months after the presentation of the petition.

Clause agreed to.

Further Amendments made.

Report thereof to be received To-morrow.